VOL. 06, NO. 01, June 08, 2012 (Jestha 26, 2069)

By Jeeva Raj Budhathoki

The Constituent Assembly (CA), elected for the first time in Nepal, has collapsed without accomplishing its primary task of writing the constitution. Its dissolution was certainly beyond any consolation for the Nepalese people, whose dream to get the constitution was dashed for the moment. The donor countries and organizations, which contributed a large amount of economic and technical support for constitution writing and peace process in Nepal were also worried about the situation.

During the 4 years, the CA, with 601 members in it, spent Nine Hundred Millions of Nepalese Rupees, holding 122 meetings, except the thematic committees' meetings. Among the 11 thematic committees; Committee on Division of Natural Resources, Financial Power and Revenue and Committee for Protection of Fundamental Rights of Minority and Marginalized had no any debate as they submitted their reports with unanimous decisions. Leaving these two committees, others had to decide by absolute majority votes after failing to find consensus. The Committee on Determination of Form of Governance had submitted its report without passing.

Similarly, the Committee for the Protection of National Interests had submitted its report earlier and the Committee for Restructuring of the State and Distributing of State Powers had taken more time to submit its reports than others. With a view to the number of convened meetings; 127 meetings as the largest number were convened by the Committee for Restructuring of the State and Distributing of State Powers and as a least number; 32 meetings were convened by the Committee for Protection of Fundamental Rights of Minority and Marginalized.

The Committee for Restructuring of the State and Distributing of State Powers and Committee on Determination of Form of Governance of the State were more debatable. At the beginning there were about 300 debates to search for consensus and, of them, 117 were still there at the eleventh hour of the 27th May. Of them, the more challenging issue was about federalism with ethnic identities. Finally, this issue proved to be the fatal weapon to slay the CA.

There are 42 countries in the world writing the constitution through the CA. If we study them, in places where the political leaders were unanimous in core national interests and committed to them, there were written constitutions being written in a timely manner and without futile debates. But, where vested interests, and power cravings were in the forefront, the CA was used as a means of fulfilling them; either it took an unusually long time there or the constitution was never written. For example, in Pakistan, it took about nine years and in Kenya 20 years to write the constitution. Likewise, Indonesia and Israel could not write the constitution even though the CAs were formed there for the purpose. Now, Nepal has also followed the path of the countries that failed to write a timely constitution. Now, let us have a look at the causes of the CA’s failure.

The CA was unnecessarily bigger in size here than in other countries of the world with the history of the CA. For example, there were 490 CA members in South Africa, 229 in India, in Pakistan 66 for the first time and 80 the second time, in Ecuador 130, and in Bolivia 255 etc. Even thought the size of Nepal’s CA was big, there were more laymen and fewer experts. Laymen, who did not know their role, hampered meetings, raising unusual demands from time to time.

Likewise, the CA's 'Thematic Committees' are also responsible for not taking factual decisions that would help the CA in taking swift final decisions. For example, the recommendations for 14 provinces, 10 Constitutional Commissions and not reaching decisions about Governance and Election System were more debatable.

Whatever the practice in other countries; we should have separately split the 601 members into the CA and the Parliament. Had we done so, the CA would not have been entangled in power seeking dirty games and its time could be used properly. In Bolivia, this technique was applied. We followed the South African path without caring about the infrastructure developed there. In South Africa, before forming the CA, the providences' boundaries and their names were determined in the Interim Constitution. Similarly, the 34 basic principles of the constitution were fixed and a Constitutional Court was also constituted to scrutinize whether these principles were being followed or not. The main problems for us were provoking the Ethnic Groups by some leaders and ignoring them by others. When the issue reached a climax, leaders remained as the silent spectators till the CA died. Another problem was the informal caucus of ethnic members of the CA. They all were united in favor of ethnic provinces although they were affiliated with different political parties. They were out of their party's whips and parties were also unable to keep them under their control.

Although, the CA is no longer there now, its demand has not ended yet. For the last 60 years, the Nepalese people have wanted a constitution written by themselves so that such a Constitution would guarantee human rights, rule of law and political, socio-cultural and economic rights of all people from different castes and classes.

After the end of Rana régime in 1950, the then King Tribhuwan had declared forming a CA to write the constitution. After a few years, he died and his successor King Mahendra denied CA. In 30 years after that, the agitation of 1989 took place and the Multiparty Governance System was revived. Then, the demand for the CA came again from the 'Nepal Communist Party Masal' led by Mohan Bikram Singh to represent the people's will. The demand was ignored again and a few people wrote 'The Constitution of the Kingdom of Nepal 1990’. This Constitution also could not get the ownership of all the people. Then again the popular agitation occurred in 2005 and it swept the King out of his regime and the Country got the Republic. Then the CA was formed.

Now to conceive of another CA election in the future, there are so many doubts, suspicions, uncertainties and constitutional crises that might create a series of debates starting all over again.

By Abhishekh Adhikari

The political developments in the country have everyone thinking about the importance of the constitution, periodical election, federalism, and everything that the country lost due to the expiry of the Constituent Assembly (CA). It is interesting how Nepalese have shown their patience in this time of political crisis. The CA has expired, and there will be an election in the next few months for which every Nepali is excited to cast his/her vote again. Unfortunately, the dilemma is that the leaders are not capable of shouldering the responsibility of the vote that each Nepalese citizen casts during the election. It is embarrassing to the voters to see that those who they thought would deliver fail to deliver.

The sustenance of democracy in Nepal is not because of the political parties and leaders but because of the faith people have in democracy. Nepalese have seen their future and have realized that their dreams will take shape only through democracy and not through the leaders. It is quite a challenge for every Nepali to vote in the election knowing that there is no leader who has the ability to make his/her dream come true.

The political squabbling does not give us development or the infrastructure to develop further. The fight over intricate legal provisions has no meaning for most Nepalese who are struggling to afford the basics of life. Life is becoming harder with every passing day.

Constitutional provisions are meaningful only when they can have a positive impact on the lives of the people. The first thing Nepal needs is a constitution, and then, it has to be implemented to bring about change in the lives of the people. The Constituent Assembly failed to deliver the constitution, and now, there is a silence which worries everyone. The silence means that no one had imagined that the Constituent Assembly would be unable to form a constitution. Slowly people are realizing that their dreams have been shattered. They have wasted their money, energy, and resources on the incompetent leaders who had come before them, asking for votes and promising the delivery of the new constitution, which would reflect the people's aspirations. It is so important, first of all, to see that one can deliver what he has undertaken to do. Then others, who are giving responsibilities, must see it. In our case both failed—the leaders who claimed they could deliver and the people who entrusted them with the duty to deliver. This is an embarrassing situation.

It is definitely true the work undertaken by the Constituent Assembly members was ambitious. Copying what others have done without realizing the ground reality, in all probability, meets what Nepal has met through the failure of the CA.

Whatever might have happened to the Constituent Assembly, democracy gives opportunities to new leaders. Democracy empowers leaders. It brings out the leaders from the very nooks and corners of the country. Some leaders fail while others rise. There is always hope. It is remarkable how the demands of the people have outdone the capability of leaders. It is a sign that new leadership with better vision is the necessity of the day to fulfill the ambitions and longings of people in Nepal.

It is a challenge for experts to show that they are better than the current leaders of the political parties. They could use the resources generated by the Constituent Assembly members and produce a beautiful, or at the least a frame of, the constitution to fill the vacuum that the expiry of the CA has left. The money, resources, and energy spent for four years will have some meaning if done so. The only problem here is to decide who has the authority to give the experts to exploit the resources that the CA members so meticulously collected. Never has such an intense debate and discussions been carried out in Nepal in the past. The new constitution drafted could be presented before the people through referendum for its approval by the people. The constitution will still have the legitimacy and approval of the people. This is what we asked for through the CA. The problem could be political, for our leaders will look bad if the work is accomplished by the experts.

Everyone is in pain looking at the resources spent by the CA without any result. Experts' constitution approved through people's referendum will do justice to the resources and energy spent for the new constitution. It could be a face-saving option for all.

Going to election is definitely a desirable thing, and everyone is definitely excited about it. But first, the expenses made in the drafting of the new constitution have to be accounted for. The money spent during the last four years was the taxpayers' money, both from the Nepalese and their foreign friends alike. As long as the money and resources spent are accounted for, Nepalese citizens will not mind going for periodical election any number of times to exercise democratic values. In fact, the Nepalese are looking forward to giving leaders opportunities by providing them with responsibilities to lead the country in the 21st century.

By Jose Assalino

The understanding of child labour in Nepal is as diverse and complex as in the other parts of the globe. The National legislation defines child as a person below the age 16 years. There are different opinions from various quarters and sectors regarding “What child labour is and what is not child labour?” But above all the definitions the most crucial thing to remember is “What work is appropriate for children?" and “What kind of work should be categorized as inappropriate for children?”

The ILO defines child labour as the work that deprives children of their childhood, education, their potential and their dignity, and work that is harmful to their physical and mental development. While governments have raised commitments to find new solutions to end exploitative work for children, the priority remains with the worst forms of child labour such as slavery, trafficking of children, debt bondage, forced or compulsory labour, use of children in armed conflict, prostitution, pornographic performances or illicit activities, and in particular, in the production and trafficking of drugs. The Member States in the recent years have come under increased pressure also to eliminate the hazardous child labour, the work that jeopardises the physical, mental or moral well being of a child, either because of its nature or because of the conditions in which it is carried out.

Child labour has been widespread in Nepal for many centuries, mostly in rural areas, as it is considered to be a part of the normal process of socialization. Children in the earlier days, and even today, have worked for as long as families have needed their support in the farms and in the fields. Doing this deprives them of their education, right to grow in a conducive environment, and have fun (especially because enjoying childhood is considered equally crucial for children's growth and mental and often physical development).

With the passage of time, along with the emergence of modernisation and globalisation, child labour remains to be equally concerned especially among the urban cities, where it is less in formal but massive in the informal sectors. This has changed the overall perception of child labour in Nepal from rural to urban, from agriculture bonded child labour to children involved in labour work in hotels, industries, urban transportation, brick kilns, jari (embroidered fabrics), in legal and illegal occupations from night clubs, dance bars, restaurants to pornography and child prostitution. Now this brings us to the question: What kind of child labour are we talking about?

The international community has set a target of eliminating the worst forms of child labour by 2016. A Global Conference on Child Labour held in Hague in 2010 established a Roadmap for action to eliminate the Worst Forms of Child Labour by 2016 and the progress towards the goal will be reviewed at a Global Conference to be held in Brazil in 2013. With this in mind it is timely for all the actors involved in the international and national level to reflect upon the actions and pave ways of tackling the worst forms of child labour in Nepal.

According to the Nepal Child Labour Report 2010 (based on the National Labour Force Survey 2008), launched recently on the occasion of the World Day Against Child Labour on 12 June 2012, there is a decline in the 5-14 year-old children engaged in economic activities in Nepal—from two million (48%) in 1998 to nearly 1.5 million (41%) in 2008. The decrease of child labour in sectors related to carpet making, beedi making, stone quarries, bonded child labour, portering has provided a positive message that the end of child labour is in sight! Concrete efforts are being made by the Government of Nepal, trade unions, employers’ organisations, and the civil society to address child labour issues, and the progress achieved in this area in recent years is simply undeniable.

The Government of Nepal has clearly demonstrated its commitment to the elimination of child labour. The ratification of two ILO core Conventions on Child Labour No. 138 on the Minimum Age for Employment and No. 182 on the Worst Forms of Child Labour was followed by the establishment of a number of legislative and legal frameworks including the National Master Plan on the Elimination of Child Labour (2004-2014). From 1990 onwards and in line with the spirit of the two core Conventions, the Government is in pursuit of strategies and plans effective for child labour abolition. It is with this view that the 2004-2014 Plan was further improved and updated in 2010 with the elaboration of a revamped National Master Plan (NMP, 2011-2020) on Child Labour which is awaiting the Government’s endorsement. The NMP aims at re-energizing Government actions towards the target of elimination of all worst forms of child labour by 2016 and all child labour by 2020.

The current NMP addresses a “parallel track” approach: prevent children from child labour and rehabilitate children (and their families) caught in child labour. The current NMP recognizes that poverty, among others, is the contributing factor to child labour, and that many children from the poor families are sent to work to generate income. It highlights the various deficiencies (relating to policy, legislation and enforcement, knowledge, education, child protection, institutional and implementing capacity, and awareness) that are impeding on efforts to eliminate child labour and its worst forms in particular.

The same NMP crystallizes that child labour must be addressed through multi-sectoral preventive and rehabilitation work and Ministerial coordination. Addressing poverty and the deficiencies in education and social protection policies are crucial for the abolishment of child labour. The NMP stipulates that technical and financial income generating activities, and improved decent employment generating (vocational) education are needed for the families to bridge the gap between poverty and child labour for survival.

Another concrete and fundamental step was the creation of the Child Labour Elimination Section (CLES) under the Ministry of Labour and Employment. Today, the CLES is the key national entity for coordinating, monitoring, and reporting on child labour interventions in the country. The CLES is the main counterpart agency of the ILO technical cooperation programme to support the implementation of the Nepal National Master Plan on the prevention and elimination of Child Labour.

The CLES, the Ministry of Labour and Employment and the ILO are also working directly with workers’ and employers’ organisations (social partners) on a number of programmes within the framework of the National Master Plan. This tripartite partnership entails consultations over the development of the National Child Labour Policy, amendments to national legislative and regulatory framework, the determination of hazardous child labour, strengthening the capacity of relevant stakeholders, and advocacy and awareness activities for child labour elimination. The social partners in Nepal have undertaken important initiatives on child labour prevention, but for greater impact, these efforts need to be taken to scale, and for sustainability, they need to be integrated in their policies, plans, and budgets.

More recently, the Ministry of Local Development and the Ministry of Women, Children and Social Welfare have also committed to join efforts with the Ministry of Labour and Employment aiming at joint action to reach out to a wider target base through decentralised agencies of the Government of Nepal, including District Development Committees, Village Development Committees and Municipalities. However, despite the Government’s commitment and its efforts supported by the social partners and civil society, challenges remain and these impede efforts to ensure the rights for the youngest citizens of the nation and to achieve the national goal to end child labour.

A key challenge relates to the developing status of the institutional and human resource capacity, to coordination, monitoring, and reporting on child labour elimination efforts. The capacity issue is affected by, and in turn exacerbates by, a knowledge base that is not sufficiently updated and utilized to facilitate child labour policy development and the promotion of mainstreaming child labour issues and concerns in relevant development programmes and budgets. These challenges have underlined ILO support to the Ministry of Labour and Employment and the CLES, particularly in the development and implementation of the National Master Plan (2011-2020).

Nepal is one of the few countries in South Asia that has not developed a policy on child labour, nor a workable determination of hazardous child labour. Presently, this is one of the top priorities of the Government together with the social partners and civil society to extend the scope of their programs. Ending child labour needs actions on many levels: development and enforcement of legislation, better education, integrated and comprehensive approaches, including market measures to promote accelerated economic development and employment creation, effective social protection measures, vocational training, improved labour inspection awareness at an individual and community level, thus creating a society with “zero tolerance” to child labour and benefiting from a reality that Nepal is free from child labour.

Assalino is Director ILO Country Office for Nepal